80 PLP 1150 (CLC)

S. 15 (4) read with Civil Procedure Code (V of 1908), O. IX, r. 13-Tenant absent on date of hearing and ex parte order of ejectment passed

Ex parte order later set aside subject to payment of costs but costs not paid and adjojrnment allowed-Tenant not appearing on such date and ex pane order revised-Evidence of appellant (landlord) being already on record no legitimate exception, held, can be taken to order of revival of ex pane order. M. Akrarn Khan Umar for Appellant. Ch Khushi Muhammad Akhtar for Respondent. Date of hearing : 21st October, 1979. The facts giving rise to this second appeal are that the appellant, Muhammad Shafi, made an application for ejectment of the respondent, Ghulam Muhammad, and one Abdul Hamid from a house, on the ground inter alia, that he had let out the house to Ghulam Muhammad who had sublet the same to the said Abdul Hamid. The application came up before a Rent Controller on 20th January 1975 when the respondents therein did not put in appearance. They were; therefore, proceeded ex parte and on the basis of the evidence produced by the appellant (landlord), an ex parte order was passed against them. Thereafter, they made an application for setting aside the ex parse order. The appellant did not object to their prayer being granted on payment of costs. Consequently, on 25th April 1978, the learned Rent Controller set aside the ex pane order of ejectment on payment of Rs. 35 as costs. Thereafter, on 29th May 1978, when the case came up before the learned Rent Controller, the parties counsel were present. The learned Rent Controller noted that the costs had not been paid. He, therefore, adjourned the case to 1st June 1978 for payment of costs and filing of reply by the respondents to the ejectment application- While making that order, the learned Rent Controller warned that no more time will be given to the respondents for doing the needful- On 1st. June 1978, neither the respondents nor their counsel had put in appearance. The costs heel also not been paid nor the respondents' reply had come on the record. The learned Rent Controller, therefore, revived his ex parte order of ejectment, Feeling aggrieved by that order, Ghulam Muhammad respondent went in appeal before an Additional District Judge who accepted the same, set aside the ex parte order of eviction made by the learned Rent Controller and remanded the case to him for fresh decision. Being dissatisfied with the order of the appellate authority, the appellant (landlord) has come up in second appeal to this Court. The reason given by the learned Additional District Judge for setting aside the order of the learned Rent Controller were that since the reply of the respondents to the ejectment application was already on the record, his order requiring them to file the said reply was misconceived and that non-payment of costs did not constitute a valid ground for passing the order impugned before him.

3. As for the filing of the reply in regard to the ejectment petition, learned c9unsel for the appellant contended that the reply which was already on the record was put in by Abdul Humid, who was tine of the respondents in the original case, and tot by Ghulam Muhammad who was the other respondent. I have looked at the aforesaid reply and find that it has been signed by Abdul Hamid as follows :

[Abdul Hamid o Bray Ghulam Muhammad] This shows that Abdul Humid signed both for himself as well as for Ghulam Muhammad. Both of them were represented by a common. Thus some, sort of counsel, namely Mr. Bashir Ahmad Khan, Advocate reply was there on the record on behalf of both the respondents and, therefore no serious exception cart be taken to the observation of the learned Additional District Judge that since a reply of Ghulam Muhammad respondent was already on the record, the learned Rent Controller had erred in directing him to file his reply again.

4. The next plea raised by the learned counsel for the appellant was that since the respondents were not present before the learned Rent Controller on 1st June 1978 and had also failed to pay the costs, the learned Pent Controller was perfectly justified in reviving the export order against them. In reply, learned counsel for the respondent maintained that the respondent and his family met an accident a few days before the said date and, therefore he could riot appear before the learned Rent Controller to pay the costs and take part m the proceedings.

5. I am afraid cannot take notice of the reason stated by the learned counsel for the respondent for the non-appearance-of the respondent on the 1st June, 1978. After the ex parse order was removed by the learned Rent Controller on that date the respondent had two courses open to him, namely, (i) to make an application for setting aside the ex parte order an (ii) the filing of an appeal against that order. If he had adopted the first course he could have asked for the setting aside of the ex paste rove on the grown that he had sufficient cause for non-appearance on 1st June 19'18, but since he did not choose that course and decided to assail the ex parte order on merits he cannot make use of the accident alleged t have been suffered by him. Now, what is to be seers is whether the ex paste order is legally defective, Surely, the respondents in the ejectment petitions were not present before the learned Rent Controller on 1st June 1978 when the ex parte order of ejectment was revived. Evidence of the appellant was already on the record in support of that of legitimate exception can, therefore, be taken to the order made by the learned Rent Controller on the above date.

6. In this view of the matter, the order of the learned Additional District Judge cannot be maintained. I, therefore, accept the appeal with costs, set aside the order of the learned appellate Court and restore the one made by the learned Rent Controller on 1st June 1978. K. M. A. Appeal accepted